How Does the Covid-19 Pandemic Affect the Right to Have a “Speedy Trial”?

PUBLISHED ON October 3, 2022

Section 11(b) of the Charter: Trial within a reasonable time

Section 11(b) of the Canadian Charter of Rights and Freedoms, guarantees that any person charged with a criminal offense has the right to be tried within a reasonable time. What does “a reasonable time” mean? In the case of R v Jordan, the Supreme Court of Canada held that where a case prosecuted in the provincial court exceeds 18 months. (if prosecuted by indictment in the Superior Court of Justice, 30 months), that delay is presumptively unreasonable. Delay waived by the defense, does not count towards the ceiling.

Per Jordan: Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If exceptional circumstances arise from the case’s complexity, the delay is reasonable. Where the Crown cannot meet its onus, the delay will be unreasonable and the charges must stay.

How do the shutdowns as a result of the pandemic affect the calculation of delay?

Many cases have now dealt with the issue of whether the shutdowns/backlog created by the COVID pandemic affect the calculation of delay. Much of the case law supports a finding that the COVID pandemic. it is a discrete event amounting to an exceptional circumstance with the Jordan analysis. However, many cases also hold that this delay must be analyzed in terms of its own unique facts. Every case is different. In some cases, the pandemic had no impact whatsoever. For others, trials and preliminary hearings had to be adjourned, sometimes multiple times during multiple lockdowns. And for some, the determination of the impact of the shutdowns is much more complicated. Again, each case is different. As such, there is no ‘standard deduction’ allotted for the COVID pandemic-related court shutdowns and resulting backlogs. One must look at whether, and how, the case was actually impacted by the shutdown.  

The Crown must make reasonable efforts to mitigate the delay.

Of particular note, where the Crown seeks to establish an ‘exceptional circumstance’. it must demonstrate that it made reasonable efforts to respond and bring the matter to completion under the Jordan ceiling. Each case must be examined to determine whether the Crown took the steps available to it to mitigate the delay. For example, in some cases, the delay had nothing to do with the pandemic. While coinciding with the pandemic, the delay was caused. By the failure of the Crown to provide disclosure in a timely manner. In other cases, the court may look at how the Crown prioritized a case within the system – knowing the case was in jeopardy of exceeding the Jordan ceiling.  

Conclusion

Each case is different. The foregoing is for informational purposes only and is not intended to constitute legal advice. There are too many variables at play to provide legal advice here. Should you require legal advice, please contact Brian Ross criminal lawyer directly to schedule a consultation.

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Brian Ross is a founding partner at Canada’s largest criminal Law firm, Rusonik, O’Connor, Robbins, Ross & Angelini, LLP. Prior to founding this firm, Brian was a partner at Pinkofskys, a leading law firm famous for its vigorous defence of its clients.

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